Brexit, The Supreme Court (UK) and the principle of loyalty: on the question of irrevocability of a withdrawal notice

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Article 50, TEU is silent on several issues concerning the withdrawal of a Member State from the European Union. Such article establishes that the Member State shall notify the European Council of its withdrawal intention in accordance with its own constitutional requirements. But it does not provide for, for instance, about the hypothesis of revoking the notification of the withdrawal intention, perhaps – before the certainty of revocability – to prevent the Member States of being tempted to influence the destiny of the EU through a false threat of exit. Therefore the doubts raised by article 50, TEU will have to be solved in the light of the principles of the EU law, in special the principle of loyalty [Article 4(3), TEU]. According to this principle of friendly conduct, inherent to all known federative systems, the EU and the Member States respect and assist each other mutually in the fulfilment of the missions resulting from the Treaties.

In 24 January 2017, The Supreme Court issued its expected ruling on whether a notice withdrawing the UK from the EU Treaties can, under the UK’s constitutional arrangements, lawfully be given by Government ministers without prior authorisation by an Act of Parliament.[i] Probably to justify the absence of a reference for a preliminary ruling on the question of irrevocability of a withdrawal notice pursuant to Article 50 TEU, The Supreme Court highlights that UK’s constitutional requirements are a matter of domestic law should be determined by UK judges. Moreover, The Supreme Court asserted that the issues in those appeals have nothing to do with political issues such as the merits of the decision to withdraw, the timetable and terms of so doing, or the details of any future relationship between the UK and the EU.

In this sense, The Supreme Court stated that the terms of the European Communities Act 1972, which gave effect to the UK’s membership of the EU, are inconsistent with the exercise by ministers of any power to withdraw from the EU Treaties without authorisation by a prior Act of Parliament. Therefore, The Supreme Court endorses the High Court’s contested decision but reframes it upon a different premise other than the irrevocability of the notification (see point 26 of the judgment: “without expressing any view of our own on either point”). According to The Supreme Court, so long as the European Communities Act 1972 remains in force its effect is to constitute EU law as an independent and overriding source of domestic law. It operates as a transfer of law-making powers, an assignment of legislative competences, by Parliament to EU institutions, unless and until Parliament decides otherwise.

It is common ground that UK domestic law will change as a result of the UK ceasing to be party to the EU treaties and the rights enjoyed by UK residents granted through EU law will be affected. But from the judgement it does not derive that The Supreme Court acknowledges automaticity between the withdrawal notification and the remaining in force of the European Communities Act 1972, as it continues to produce its effects until the UK Parliament repeals it. The Supreme Court recognises, indeed, that withdrawal makes a fundamental change to the UK’s constitutional arrangements, by cutting off the source of EU law – and for this reason the UK constitution requires such changes to be effected by Parliamentary legislation.

Hence, without stating an opinion on the High Court reasoning based on the irreversibility of the notification[ii], The Supreme Court tries to find a solution that does not defy the European loyalty, as the interpretation on matter notably falls to the CJEU. As a result, we end up without knowing what the CJEU would rule on this relevant question. Yet, The Supreme Court judgment gives a good example of how the principle of European loyalty must guide the procedure of the UK’s withdrawal in order to guarantee an exit that minimises the damages of the rupture, mostly when the modality of a “hard Brexit” appears in the horizon.

It’s understandable that in the period prior to the withdrawal notification the nerves are more exalted by the expectation and the uncertainty – which may eventually explains some excess of the British and the European authorities. But especially from the moment Article 50, TEU is invoked onwards both must make sure that they fulfil the obligations that derive from the loyalty with particular diligence, otherwise the process may be flawed and then the CJEU is called to act in compliance.

[ii] According to the High Court (1) a notice under Article 50(2) cannot be withdrawn, once it is given; and (2) Article 50 does not allow for a conditional notice to be given: a notice cannot be qualified by, for example, saying that it will only take effect if Parliament approves any agreement made in the course of the negotiations contemplated by Article 50(2).

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